State v. . Rhodes
15 S.E. 1038
N.C.
1892
Check Treatment
MacRae, J.,

after stating the case as above, proceeded : In the first exception we can see no force. Where the State relies upon facts and circumstances tending to prove the guilt of the defendant, such evidence, though slight in each separate instance, is competent if it, with other facts offered in evidence, bears upon the charge in the bill of indictment. State v. Thompson, 97 N. C., 496.

As to the second exception, upon a careful examination of the testimony we find abundant evidence of threats made by defendant against T. J. King, and once against Mrs. King. These threats seem to have been made because of the fact that defendant’s wife was separated from him and living upon the land of Mrs. King, and defendant complained that T. J. King, or Mrs. King, would not send her off Mrs. King’s land. In addition to the testimony as to the threats, there is testimony of one witness that on Friday evening before the burning occurred on Saturday night, the defendant inquired if he could cross a creek at a point where there was said to be a path leading by a short way to Mrs. King’s. Whether this path would have carried defendant by a shorter way to the house where his wife lived we cannot determine from.the testimony. The other testimony is that defendant was arrested on Sunday, and said he was up until about midnight the night before killing a beef.

The general rule is, if there be any evidence tending to prove the fact in issue the weight of' it must be left to the jury, but if there be no evidence conducing to that conclusion the Judge should say so, and, in a criminal case, direct an acquittal. State v. Vinson, 63 N. C., 335. The evidence offered did not tend to prove the fact of the burning by defendant, but it was for the purpose of proving other facts which, if true, would compel the inference by the jury of *651 defendant’s guilt. To quote further from the same case: “But it is confessedly difficult to draw the line between evidence which is very slight, and that which, as having no-bearing on the fact to be proved, is in relation to that fact no evidence at all.” The'evidence must be more than sufficient to raise a suspicion or a conjecture. Where there is evidence to go to the jury, they must pass upon its weight, but if the evidence, taken as a whole, will not warrant a verdict, of guilty, there is no evidence sufficient to be left to the jury, and the Court should so declare. State v. Powell, 94 N. C., 965. If we apply the principles laid down in the above cases, and elaborated in the case of State v. Brackville, 106 N. C., 701, and State v. Goodson, 107 N. C., 798, to the one before us, we will come to the conclusion that there was not evidence sufficient to go to the jury.

Eliminating the threats, there is nothing left. We seriously apprehend that injustice has been done his Honor who tried this case, but who did not make out the statement on appeal. What purports to be his notes of the testimony is copied into-the case. These are evidently rough notes or memoranda from which, aided by memorjq a true statement of the evidence could have been made, but we must take it for all the testimony in the case, and upon this testimony we are constrained to hold that there is error, and award a venire de novo-

Error.